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Line Item Veto

The line item veto is a debate that is only really relevant to the United States. The US Constitution gives Congress, as the legislative branch of government the power of the purse. This means that all taxation and spending decisions (appropriations of federal government money for particular purposes) must be authorized by both houses of Congress in legislative bills that are sent to the President for signature or veto. Often appropriations bills are enormously long and complicated, containing thousands of individual items of appropriation, many of which the President has asked for in his budget request, but some of which he disagrees with. In particular, the practice of earmarking, whereby individual Congressmen insert appropriations requests of benefit to some of their constituents into large spending bills, has been criticised as wasteful and an example of “pork barrel” politics, whereby politicians use taxpayers money to buy support back home (link to earmarks debate). Government spending would be lower and more effective if such items were removed from appropriations bills, yet at the moment the President has no means of doing so; he must either sign the bill in its entirety or send it back to Congress for reconsideration. In practice, Presidents since Ronald Reagan have always signed such bills (they can sign it but ask Congress to reconsider some details, but the legislature has no obligation to debate or vote on such rescission requests, and so this has no impact in reality).

Presidents have for decades asked for the power to cancel individual items of appropriations, with Ronald Reagan being particular vigorous in his demands for line-item veto authority. Technically the power is not one of absolute veto but means that when signing a bill a President would be able to notify Congress of his intention not to spend one or more items of appropriation within it. The campaign for a line-item veto was particularly strong in the mid-1990s when federal budget deficits concentrated minds on the need to combat wasteful spending, something that is once again relevant. It was a provision in the Republican’s winning 1994 Contract With America manifesto[[Republican candidates for the House of Representatives, The Contract with America (1994), Manifesto Portal, http://manifestoindex.blogspot.com/2011/04/contract-with-america-1994-by.html accessed 5/5/11]], and enacted in 1996. Under the Line Item Veto Act President Clinton vetoed 82 items of spending from the 1997 appropriations bills, representing $1.9 billion of savings over five years; in one case Congress overrode his decision by majority votes in each chamber. However, the Act was challenged in federal court by two groups who would have benefited from appropriations that Clinton had vetoed, and in 1998 the Supreme Court found the Line Item Veto Act to be unconstitutional as Congress was not allowed to give up some of its powers to the executive branch.[[Clinton, President of the United States, et al. v. City of New York et al. No.97-1374, United States Supreme Court, 1998, http://scholar.google.co.uk/scholar_case?case=4447838344519582856&hl=en&as_sdt=2&as_vis=1&oi=scholarr accessed 5/5/11]]

Since 1998 there have been several attempts to revisit the issue, with significant proposals in 2006 and 2009 of new bills that attempted to provide the President with line-item veto power in ways that could be considered constitutional. These failed to become law and it is possible that the only way to create such a power is by amending the US Constitution itself (as the Supreme Court decision noted in 1998). As the federal deficit has once again grown and government waste has become a major political issue, there are renewed calls for a line-item veto to be introduced.

This is potentially quite a technical debate but speakers would be well advised to base their case upon the main principles at stake. It is worth noting that the 1996 Act allowed Clinton the power to cancel not only items in appropriations bills but also tax breaks affecting only small numbers of people. And it gave him authority to cancel items directing government expenditure within committee reports accompanying spending bills, which by convention have been accepted by Presidents as binding in the same way as appropriations in Acts are. Whether a proposed Constitutional amendment would have the same scope is a matter for argument among experts. Although the potential for the veto is important most spending not through appropriations at all, but on entitlements such as Medicare and Social Security that are legislated in different ways and which would not be covered by either the 1996 Act or more recent proposals to enhance Presidential budgeting power.

All the Yes points:

  1. Will mean fiscal responsibility
  2. Earmarks are often an abuse by congress
  3. Prevent last minute omnibus appropriations bills
  4. Line item veto is a power that state governors already have

All the No points:

  1. Will damage separation of powers
  2. Potential for abuse of power
  3. Has made little difference in the past
  4. The constitution should not be amended

Will mean fiscal responsibility

Yes because…

Amending the US Constitution to allow the President a line-item veto would be fiscally responsible. Congress has proved itself incapable of restraining spending, even as the budget deficit has ballooned in recent years. In fiscal year 2008 there were 11,610 earmarks – specific appropriations requested by individual Congressmen, mostly to benefit specific groups in their district or state – costing $17.2 billion with a total of $271 billion from 1991 to 2008.[[Gail Russell Chaddock, ‘Despite earmark reforms, ‘pork’ spending rises’, Christian Science Monitor, 3/4/08, http://www.csmonitor.com/USA/Politics/2008/0403/p02s01-uspo.html accessed 5/5/11]] Many of these items are “pork”, using taxpayers’ money on projects of dubious value in order to ingratiate the Congressman involved with groups of voters or interest groups. Typically huge spending bills bloated with such wasteful appropriations are voted through by Congressmen who have no opportunity or inclination to even read the whole thing. At present the President has to accept or sign the whole bill, despite their distaste for many of the items within it. The proposed amendment would change that and allow the President to sign the bill as a whole, while canceling spending he regarded as wasteful, of low priority, or properly a matter for state or local government.

No because…

The line-item veto power will not do much to restrain spending or reduce the federal budget deficit. Earmarks amount to less than 0.5% of total US government expenditure,[[An end to earmarks, The economist, 18/11/10, http://www.economist.com/node/17525721 accessed 5/5/10]] and only 1.5% of discretionary spending in 2009.[[W. James Antle, III, Sen. Jim Inhofe: Earmarks Debate “Phony”, The American Spectator, 12/3/10, http://spectator.org/blog/2010/03/12/sen-jim-inhofe-earmarks-debate accessed 5/5/10]] Given that many earmarks will be considered worthwhile projects by the President, any line-item cuts will be so small as to be negligible. If we were serious about controlling spending and cutting the deficit we would need to think about restraining huge entitlement programmes like Medicare and Social Security, raising taxes, reducing military spending, and lifting the retirement age further. All these will require a serious, bipartisan approach on the part of both legislators and the White House. When compared to the 2009 deficit of 500 billion or the total budget of $3 trillion[[Blake Hounshell, McCain’s bizarre earmark obsession, blog.foreignpolicy.com, 27/9/08, http://blog.foreignpolicy.com/posts/2008/09/27/mccains_bizarre_earmark_obsession accessed 5/5/11]] the line-item veto debate is just a distraction from that much more important task.

Earmarks are often an abuse by congress

Yes because…

The present system of earmarking in Congress is wide open to abuse. The party leaderships in each house can use the offer of pork, or the threat to withhold it to enforce party discipline. “Logrolling” occurs whereby an earmark is obtained in return for support on an unrelated piece of legislation. All this leads to legislators who put party above country and vote for bad legislation in pursuit of their own vested interest. They basically “are federal dollars that members of Congress dole out to favor seekers — often campaign donors. In the process, lawmakers advocate for the companies, helping them bypass the normal system of evaluation and competition.”[[David Heath and Hal Bernton, $4.5 million fopr a boat that nobody wanted, The Seattle Times, 15/10/07, http://seattletimes.nwsource.com/html/nationworld/2003948586_favorfactory14m.html accessed 5/5/11]] Forcing pork out in the open by making Congress vote to defend it after a Presidential line-item veto is the best way to remedy matters. Overall the President is more accountable to the people as a whole than individual representatives, and with their national mandate, more able to stand up to powerful interest groups.

No because…

There are other means by which cutting earmarks could be achieved, without the drastic step of mutilating the work of the Founding Fathers. For a start, Congress could just ban the use of earmarks, unfortunately an attempt in 2010 was defeated 39-56 in the Senate.[[J. Taylor Rushing, Senate votes down ban on earmarks 39-56, The Hill, 30/11/10, http://thehill.com/blogs/on-the-money/appropriations/131093-earmark-ban-voted-down-in-the-senate accessed 5/5/11]]Existing rescission powers could be toughened by requiring Congress to hold a prompt vote on Presidential requests for appropriations cuts, rather than ignoring them as invariably happens now. The Impoundment power removed in 1974 could be restored. The convention that spending items in committee reports should be binding on the executive could be challenged. And the practice of legislating massive omnibus spending bills could be ended; more, smaller and more focused bills would make pork more obvious and make it more viable for a President to veto a whole bill without causing the federal government to collapse for want of funding.

Prevent last minute omnibus appropriations bills

Yes because…

The line item veto could prevent omnibus appropriations bills as with a possible veto there would be little advantage to congress in bundling such spending together. In recent decades huge omnibus appropriations bills have become the norm, these are bills that “package many, often unrelated, proposals in a single, very long piece of legislation.”[[Omnibus bills, Congressional Quarterly Roll Call, http://corporate.cqrollcall.com/wmspage.cfm?parm1=232 accessed 5/5/11]] Presidents have had to accept these bills in their entirety or see the federal government shut down for lack of spending authority.

Presidents from the 1790s to 1974 had an impoundment power not to spend money which Congress had appropriated. This power was lost in 1974, with increasingly bloated budgets and pork barrel spending the result.Congressman Phil English (R – Penn) For far too long, Presidents have had to adopt an ”all or nothing” approach when considering action on bills containing appropriations. This presents a predicament for them when good policies are overloaded by unnecessary spending proposals. The case for this amendment was clearly demonstrated by the FY99 Omnibus Appropriations Act last October. Many provisions in this bill were last minute ”pork” projects that should not have been included.

[[Prepared statement of Hon. Phil English, A Representative in Congress from the State of Pennsylvania, Item veto constitutional amendment hearing before the subcommittee on the constitution of the Committee on the Judiciary House of Representatives, 23/3/00, p15, http://commdocs.house.gov/committees/judiciary/hju65012.000/hju65012_0f.htm accessed 5/5/11]]

No because…

The line item veto does not directly tackle omnibus appropriations bills so it is not given that having the veto will reduce the number of such bills even if it does reduce the incentive to create them.

Line item veto is a power that state governors already have

Yes because…

All that is being proposed here is giving the President the same power enjoyed by 44 out of 50 state governors. One strength of a federal system is the way “Our States are our laboratories of democracy and we can look to them for the best practices and innovative ideas” they point the way to solutions that others, including the federal government, can adopt. And at state level the line-item veto power is very valuable in restraining spending and preventing waste; Congressman John Baldacci (D-Maine)

Unlike the Federal Government, the States by and large do not run deficits and they keep their books in order and spend only what they have each year. They pass realistic budgets and they stick to them… I am convinced that this authority is a crucial part of keeping spending in check. While it may not be used with great regularity in many States’ the fact that it is available encourages the legislatures and the Governor to reach agreement on spending issues and not to crowd the spending with extraneous matters.

[[Statement of Hon. John E. Baldacci, A Representative in Congress from the State of Maine, Item veto constitutional amendment hearing before the subcommittee on the constitution of the Committee on the Judiciary House of Representatives, 23/3/00, p.18, http://commdocs.house.gov/committees/judiciary/hju65012.000/hju65012_0f.htm accessed 5/5/11]] Because it is used irregularly there has been no general erosion of legislative authority within these states.

No because…

The federal government is not just a state government writ large, and the President is not equivalent to a state Governor. What works at state level would be neither effective nor appropriate for the United States as a whole. State legislatures have a different and more limited role than Congress, often with tax and spend powers that are much more restricted in the state constitution. The need for super-majorities or referendums for tax rises and prohibitions on deficit spending are the real reason states’ budgets are balanced, not the line-item veto. “Theoretical literature to date has provided no clear predictions regarding the effects of the line item veto on the tax level, and the empirical literature has provided conflicting results”.[[Leandro M. De Magalhaes, Lucas Ferro, Budgetary Seperation of Powers in the American States and the Tax Level: A Regression Discontinuity Design, Bristol University, Oct 2009. It is likely to be the same with spending.

Many state assemblies did not originally meet every year, so it was natural that the Governor had to have the ability to adjust spending priorities in changing circumstances. And the Presidency has much more power and money at its disposal than any Governor, creating opportunities for abuse that just don’t exist at state level. Finally, it is worth noting that line-item veto power does not always work smoothly at state level, with courts often having to rule on whether the executive has exceeded its authority in cases that often come down to fine distinctions between appropriations, tax credits, entitlements and policy choices.

Will damage separation of powers

No because…

Giving the President line-item veto power will dangerously upset the balance of power within the US Constitution. The separation of powers gives Congress the power of the purse as a check on the executive, but this proposal would hand a President unilateral legislative power by allowing him to rewrite parts of bills already passed by Congress. It will mean that the priorities of the executive will receive more money (and remember three Presidential elections in the past five have been won with less than 50% of the popular vote), and those of elected legislators who understand the needs of their constituents will receive less. In his opinion in the Clinton v. City of New York case that declared the line item veto unconstitutional Justice Kennedy argued Supreme Court Justice Kennedy
By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.
[[Justice Kennedy, concurring, Clinton, President of the United States et al v. City of New York et al., United States Supreme Court 25/6/98, No.97-1374, p.452 http://scholar.google.co.uk/scholar_case?case=4447838344519582856&hl=en&as_sdt=2&as_vis=1&oi=scholarr accessed 5/5/11]] It also sends the message that Congress cannot be trusted to be the final arbiter of the nation’s finances, adding further to the inflated importance the executive has gained in recent times.

Yes because…

This proposal will not upset the separation of powers defined in the US Constitution. Congress will retain the power of the purse and its ability to check the executive. For a start, a line-item veto would not allow a President to move money around and add funding to projects he likes but which Congress did not approve; it simply allows him to excise wasteful items. Secondly, the deletions made by the President are subject to override by majorities in Congress if they disagree with his decisions. Such votes will attract public scrutiny that earmarks buried in massive spending bills currently lack, so Congress will be reluctant to reinstate egregious examples of wasteful appropriations, while still being able to check any abuses of executive power. Finally, this measure will serve to restore the previous balance of power (before the removal of impoundment power) in which the executive had more budgetary discretion than has been the case for the past 35 years. Justice Breyer in his dissenting opinion argued the Line Item Veto Act does not violate any implicit separation-of-powers principle.Supreme Court Justice Breyer

The power “is far easier conceptually to reconcile the power at issue here with the relevant constitutional description (“executive”) than in many of these cases…

one cannot say that the Act “encroaches” upon Congress’ power, when Congress retained the power to insert, by simple majority, into any future appropriations bill, into any section of any such bill, or into any phrase of any section, a provision that says the Act will not apply…

Nor can one say the Act’s grant of power “aggrandizes” the Presidential office. The delegation of those powers to the President may strengthen the Presidency, but any such change in Executive Branch authority seems minute when compared with the changes worked by delegations of other kinds of authority that the Court in the past has upheld.
[[Justice Breyer, dissenting, Clinton, President of the United States et al v. City of New York et al., United States Supreme Court 25/6/98, No.97-1374, pp.470, 482-4 http://scholar.google.co.uk/scholar_case?case=4447838344519582856&hl=en&as_sdt=2&as_vis=1&oi=scholarr accessed 5/5/11]]

Even if earmarks were abandoned by congress no longer using them, that would in many ways upset the balance of power between the branches of government more than a line-item veto, because then the President would be able to determine much more broadly how to spend taxpayers’ money, rather than being limited to deleting individual items he finds unjustifiable.

Potential for abuse of power

No because…

A President would be able to abuse the power given to them in a line-item veto authority, leveraging it into undue influence over other elements of the legislative process. By threatening to veto items dear to particular Congressmen, they could obtain assent to bills, treaties and appointments that they otherwise would not be forthcoming. Such intimidation would be subtle and hard to prove, but it would erode checks on the executive and fundamentally alter the balance of power within the constitution. This means that budgets are politicised even more than is currently the case. When the line item veto was previously used by Clinton republicans such as Rick Santorum argued that every decision “has political overtones, but that’s fine, it comes with the territory,” Senator Ted Stevens went further “We’re dealing with a raw abuse of political power by a president who doesn’t have to run again”.[[Guy Hugliotta and Eric Pianin, Line-Item Veto Tips Traditional Balance of Power, Washington Post, 24/10/97.

Yes because…

This amendment would only give the President a limited power for a limited but worthwhile purpose. The media and interest group scrutiny that accompanies the Presidency will ensure that the White House will have to justify every line-item decision made. It does not affect the Congress’s power regarding policy-making, entitlement programmes or taxation. Indeed, it is little different to the existing convention of executive “Signing Statements” whereby the President can sign legislation while making it clear his intention not to fully implement aspects of it. It would create a budgetary separation of powers between the president and congress so introducing checks and balances against the abuse of power.[[Lucas Ferrero and Leandro M. de Magalhaes, Budgetary Separation of Powers in the American States: theory and evidence, Stanford University, 5/4/06 pp1-2 http://www.stanford.edu/group/peg/Papers%20for%20call/april06%20papers/Leandro.pdf accessed 5/5/11]]

Has made little difference in the past

No because…

The precedent of the Line Item Veto Act under President Clinton should warn against a constitutional amendment. The sums saved were laughably small, $355 million, in the context of the entire federal budget, $1.7 trillion, (0.02% of spending)[[Virginia A. McMurty, ‘Enhancing the President’s Authority to Eliminate Wasteful Spending and Reduce the Deficit’, Subcommittee on Federal Financial Management, Government Information, Federal Services and International Security Senate Homeland Security and Governmental Affairs, Committee Hearing 15/3/2011, p.9]] but nonetheless provoked considerable friction between elected representatives and the White House. There was unhappiness that the large majority of his cuts were of earmarks requested by Republican members, and an allegation that the Administration had threatened a Congressman with the veto of an item dear to them unless they supported an unrelated piece of legislation.

Yes because…

The use of the line-item veto power by President Clinton in 1997 demonstrates the advantages of such authority. Although the power was declared unconstitutional in 1998 by the Supreme Court, while he held it Clinton demonstrated what could be achieved. He acted cautiously, only cancelling 82 appropriations, but these totalled nearly $2 billion[[It is time for congress to kill the pig, Center for individual freedom, – a useful contribution in itself to reducing the federal deficit, and one that suggested that much bigger savings could be achieved by a more determined President. The Congressional Budget Office agreedCongressional Budget Office

The 1997 cancellations had a relatively small impact on the budget’s bottom line, but that outcome may have resulted in part from temporary factors, such as last year’s balanced budget agreement.
[[‘The line item veto act after one year’, Congressional Budget Office, April 1998, http://www.cbo.gov/doc.cfm?index=454&type=0 accessed 6/5/11]] This period also demonstrated that Congress would still retain the power of the purse, as it was able to overrule one of Clinton’s deletions, on the Military Construction bill worth $287billion, by majority vote in both houses.[[Marc Lacey, ‘Senate Votes 1st Override of Clinton Line-Item Vetos, Los Angeles Times, 26/2/1998, http://articles.latimes.com/1998/feb/26/news/mn-23290 accessed 6/5/11]]

The constitution should not be amended

No because…

We should always be cautious of altering the United States’ Constitution. Once an amendment is passed, it is extremely hard to overturn, even if its consequences are clearly negative (as the experience of constitutionally-mandated prohibition of alcohol should make clear). It would be both difficult and unnecessary. There are problems of wording and interpretation. The 1996 Act covered 22 pages and went into great detail to define the extent and limits of Presidential authority under the legislation, including the exact meanings of “single item of appropriation”, ”direct spending” and ”limited tax benefit”, as well as the means by which Congress could override his decisions.[[One hundred fourth Congress of the United States of America at the second session, “Line Item Veto Act”, 3/1/1996, The Library of Congress, https://www.govinfo.gov/content/pkg/BILLS-104s4enr/pdf/BILLS-104s4enr.pdf accessed 6/5/11]] It is hard to believe that a one-paragraph amendment to the Constitution could achieve such precision, opening the budgetary process up to confusion, shifting interpretation and constant legal challenge. It is also unnecessarySupreme Court Justice Antonin Scalia

The short of the matter is this: Had the Line Item Veto Act authorized the president to ‘decline to spend’ any item of spending … there is not the slightest doubt that authorization would have been constitutional… What the Line Item Veto Act does instead — authorizing the president to ‘cancel’ an item of spending — is technically different.

[[ Supreme Court Justice Scalia quoted in Michael Kirkland, ‘Under the U.S. Supreme Court: Like the South, will line item veto rise again?’, upi.com, 17/4/11 http://www.upi.com/Top_News/US/2011/04/17/Under-the-US-Supreme-Court-Like-the-South-will-line-item-veto-rise-again/UPI-71571303025400/ accessed 6/5/11]] thus the act could simply have been worded differently in order to make it constitutional. This would not change the substance of the ability of the ‘veto’ to cut spending.

Yes because…

Congressman John E. Baldacci (D-Maine)

I do not take these matters lightly in amending the Constitution. However, I am convinced in this case it is the only way to provide the President with the same authority that 44 Governors already have to influence spending.

[[Statement of Hon. John E. Baldacci, A Representative in Congress from the State of Maine, Item veto constitutional amendment hearing before the subcommittee on the constitution of the Committee on the Judiciary House of Representatives, 23/3/00, p.19, http://commdocs.house.gov/committees/judiciary/hju65012.000/hju65012_0f.htm accessed 5/5/11]] It would in general be preferable to make such a change through normal legislation, but that was attempted in 1996 and found unconstitutional. Supreme Court Justice Stevens in his majority opinion for the Supreme Court argued that it was necessary for there to be an amendment to make it constitutional,Justice Stevens

If there is to be a new procedure in which the president will play a different role in determining the text of what may “become a law”, such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution.”
[[ Justice Stevens, delivered the opinion of the court, Clinton, President of the United States et al v. City of New York et al., United States Supreme Court 25/6/98, No.97-1374, p.449, http://scholar.google.co.uk/scholar_case?case=4447838344519582856&hl=en&as_sdt=2&as_vis=1&oi=scholarr accessed 5/5/11]]

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9 years ago

Please expound upon Governors’ rights versus US Presidents’ unconstitutionality with LINE-ITEM VETOES.


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